By Mohammad Hadi Zakerhossein*
The International Criminal Tribunal for the former Yugoslavia (ICTY) is widely regarded as having been the most important laboratory for contemporary international criminal justice. This assertion will certainly be changed if a tribunal is established to deal with the crimes committed by the self-proclaimed Islamic State of Iraq and ash-Sham (ISIS). The commission of brutal crimes has become an integral part of ISIS’s routine. It demonstrates the ‘banality of evil’, as Hannah Arendt had imagined.
In spite of these atrocities, ISIS has been benefited from the ‘culture of impunity’. But there have been growing calls by the international community for the ICC to intervene. In response, on 8 April, the prosecutor of the International Criminal Court issued a clarifying statement on the alleged ISIS crimes.
According to the statement, i) the prosecutor writes that she has become interested in ISIS because of “communications” submitted by individuals or NGOs; ii) the prosecutor admits that the subject-matter jurisdiction requirement is met. This jurisdictional parameter is a prerequisite for initiating an investigation into a situation; iii) the territorial jurisdiction is absent; iv) “nationality/personal jurisdiction” exists; some state party nationals are among the perpetrators of the ICC crimes; v) the prosecutor asserts that those bearing the most responsibility are absent among the suspects who are state party nationals. Given these facts, Prosecutor Fatou Bensouda concludes that “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage”.
However, questions should be asked about the Prosecutor’s conclusion. The main criticism could be expressed as follows:
1. Confusion among procedural stages
The prosecutor should have released her statement after opening a preliminary examination. The current practice of the prosecutor deviates from the Court’s procedural structure. For the ICC, there is a distinct stage between the ‘trigger mechanism’ and the ‘preliminary examination’. This missing stage has an independent function from the other two. It can be called the ‘identification stage’. Although it seems that such a stage is not clearly referred to in written ICC law, it has been recognised in the ICC law in action. At this stage, the prosecutor identifies a situation as the object for both a preliminary examination and consequently an investigation, if required.
Contrary to the preliminary examination, there is only one evaluative function and that is to “filter out those communications that are manifestly outside the jurisdiction of the Court”. The scope of such exceptions is clearly limited; only if a proposed situation is limited to crimes committed before the entry into force of the Rome Statute or on the territory of a non-member State, without the alternative jurisdictional principle.
In the case of ISIS, all the requirements for identifying a situation have been met. In the words of Crastan Stahn, ISIS “is à priori an easy target for ICC action”. There is an ongoing armed conflict, there are two main parties - namely ISIS and the governments of Iraq and Syria - and “rimes of unspeakable cruelty” have been committed. Although the territorial jurisdiction requirement is absent, its alternative - namely the nationality jurisdiction - exists, at least with respect to one side of the conflict. Therefore, there is no obstacle blocking the opening of a preliminary examination into the ISIS situation.
2. Confusion between jurisdiction and admissibility
The prosecutor has confused the legal notion of “jurisdiction” with the concept of “admissibility”. There is a line between the jurisdiction assessment and the admissibility requirement, though this line is not always easy to discern. The Prosecutor argues that the jurisdictional basis for opening a preliminary examination is ‘narrow’. According to Mrs. Bensouda, the policy of the OTP does not allow her to count the nationality of mid- or low-level perpetrators. Nonetheless, this argument is weak. The focus of the prosecutor’s investigative activities should be directed at the persons bearing the greatest responsibility for the most serious crimes. But this policy is a matter of admissibility assessment and not jurisdiction determination. Focusing on the big fish is not a jurisdictional threshold. It is a policy but not a statutory limit on the ‘nationality jurisdiction’ enshrined in Article 12 (2)(b) of the Rome Statute.
The prosecutor, for the first time, refers to a notion that is not recognised by the Rome Statute as playing an evaluative factor, namely the narrowness. This unprecedented notion is meaningless in the context of the ICC Law. To select a situation for investigation, the jurisdiction requirement either exists or does not exist, regardless of its narrowness or broadness.
4. Policy goal
Even in the context of the admissibility assessment, if the policy of focusing on the big fish plays a restrictive role, it does not preclude the Court’s intervention. Firstly, this policy was adopted because of the Court’s main objective, namely ending impunity. This policy is only a driving rule, instead of a binding rule, directing the Court to act against the culture of impunity. Invoking to this policy to justify the non-action of the Court does not consistent with the soul of its adoption. Secondly, this policy is by no means absolute. On the contrary, according to the policy explicitly adopted by the OPT, the prosecutor can expand her general prosecutorial strategy to encompass mid- or high-level perpetrators, or even particularly notorious low-level perpetrators, with a view to building cases up to reach those most responsible for the most serious crimes.
It has been argued that using nationality jurisdiction to focus on the accountability of foreign fighters is likely to entail a fundamental shift in prosecutorial policy , but it does not mean that the ICC lacks an authority to make such a shift. It is true that territorial jurisdiction is preferable to nationality jurisdiction because its advantages by far outweigh its drawbacks. Using nationality increases the risk of one-sided prosecutions and also of the non-cooperation of the territorial states where the ICC crimes have been committed. Nonetheless, it does not imply that the Court lacks nationality jurisdiction. On the contrary, nationality jurisdiction is a statutory factor that should be observed by the prosecutor. The bottom line is that if nationality jurisdiction exists, the prosecutor is obliged to proceed in accordance with the Rome Statute.
6. Positive complementarity
In opening a preliminary examination, the prosecutor can activate the ‘positive complementarity principle’. This means that the prosecutor tries to persuade states to fulfill their primary obligation to combat against international crimes. According to the former prosecutor i) the OTP is logically the main channel to implement positive complementarity principle; ii) the preliminary examination offers the most promising opportunity for the OTP to implement this principle. Apart from pushing states parties to prosecute their nationals who are taking part in the ISIS crisis, in the case of non-member states, the prosecutor can take the initiative and encourage the territorial states to fulfill their tasks. This authority is explicitly enshrined in Rule 44(1) of the Rules of Procedure and Evidence of the ICC.
7. Public opinion
Apart from the legal considerations, the disappointing conclusion of the prosecutor damages the legitimacy of the Court in terms of public opinion. Prevention of war crimes is one of the major objectives of the Court, in particular when atrocities are constantly occurring. The Court’s intervention contributes to raising awareness among the international community of the terrible conflict involving ISIS. It has been argued that the Court’s performed such a function in the situation of Darfur. The first Prosecutor rightly stated that the ICC is effective even when no cases reach the Court, but such non-action should be because of the existence of genuine national proceedings. Fulfillment of the ICC’s mandate needs something more than merely expressing sympathy with the victims and waiting for self-referrals.
In conclusion, the prosecutor’s decision demonstrates that i) the confines between the Court’s distinct procedural stages should be clearly recognised and ii) judicial review and control over the Prosecutor’s decisions should go beyond the communications. When the Prosecutor is able to reject the communications, fairness requires that the people who sent communications to the ICC should have the right to challenge the prosecutor’s decision.
*Mohammad Hadi Zakerhossein is a PhD researcher at Tilburg University the Netherlands. His research project deals with the issue of selectivity in the architecture of the International Criminal Court. The situation selection process in the ICC and the situation selection criteria are at the center of his studies.
Jalal Hajir works for Cartoon Movement.